The Third Division consisted of the regular members and in addition Referee Dennis J. Campagna when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
While this case represents the claims of two different Claimants, the issue is substantially identical for treatment by the Board in that each Claimant seeks the per diem allowance for rest days where he did not work the workday immediately following the end of his respective rest day cycle. J. R. Yokoyama, Jr. took two single days of vacation on August 19 and 20, 2002 following his August 17 and 18, 2002 rest days. E. J. Martinez took a single day of vacation on September 1, 2002 following his rest days of August 24 through August 31, 2002. Each Claimant claims the per diem allowance for each set of rest days. The Carrier viewed each such instance where the Claimant used vacation day(s) immediately contiguous to his rest day period as akin to voluntarily absenting himself, thereby denying each Claimant the per diem amount for his rest days as well as for the day(s) of vacation taken. In support of this position, the Carrier asserts that historically, it has not paid the per diem allowance for rest days, personal leave days and holidays where the employee has taken less than 40hour vacation increments, i.e., "single-day vacations" on the work day immediately preceding or following the rest day period.
In support of the Claimants, the Organization asserts that it has been its consistent position that the Claimants' observance of scheduled vacation does not reasonably fit the express exceptions set forth in Rule 39(e) and accordingly, the Carrier's decision to withhold the per diem allowances at issue violates the Agreement. This is so, the Organization maintains, due to the fact that an employee has no option Form 1 Award No. 39137
to take a vacation or remain at work if he/she chooses and accordingly, it cannot be asserted, as the Carrier does in this case, that a vacation is a voluntary absence within the meaning of Rule 39(e). Finally, the Organization maintains that Public Law Board No. 6302, Award 14 is not "directly on point" as the Carrier contends because the facts in the instant matter are distinguishable from Award 14, and the pertinent Agreement provisions involved herein did not exist at that time.
Following a careful review of the record in this case, with particular attention paid to the cases cited by the Carrier as well as the Organization in support of their respective positions, and for the reasons that follow, we find that the issue in the claims before us has been litigated by the Organization on numerous occasions in the past without success.
Rule 39 - PER DIEM ALLOWANCES, which was agreed to as part of the October 31, 1988 On-Line Service Agreement, reads, in relevant part, as follows:
On October 31, 1988, the parties concurrently entered into a Side Letter for the purpose of clarifying certain aspects of the On-Line Service Agreement's provisions. It provides, in relevant part: Form 1 Award No. 39137
Following our review of the facts and arguments in the parties' Submissions to the Board, we find from our close review of the entire record that the instant claims are indeed substantially identical to the cases considered by the Board as noted above. It is significant in reaching our decision in these cases that the instant matters as well as those Third Division cases noted above are governed by identical Agreement Rules. It is also significant that each of these decisions carefully considered the findings and conclusions in Award 14 of Public Law Board No. 6302 and, having done so, incorporated Award 14, thereby concluding that Award 14 was controlling precedent. Indeed, the Board in Award 37105 specifically concluded that there was "no proper basis for departing from the Form 1 Award No. 39137
rationale and findings of Award 14 of Public Law Board No. 6302," given the "identical fact patterns" underlying both cases. Each of the above cited Third Division Awards has consistently upheld the Carrier's practice of withholding per diem allowances on rest days when less than a full week's vacation is taken in conjunction therewith. Accordingly, given the Board's holdings in these substantially similar Awards together with the factual record before us, we rule that the Board must follow that tine of established precedent as applied to the instant case pursuant to the doctrine of collateral estonpet Collateral estoppel or issue preclusion, bars a party from relitigating an issue determined against that party in an earlier action, even if the subsequent action differs significantly from the prior one. Under collateral estoppel, findings of fact in a previous forum involving the same parties, the same issue of fact, and the same fact pattern will be given effect in later proceedings involving the same issues between the same parties. The application of this doctrine makes sense given the desire for stability in the LaborManagement relationship. Were the parties free to repeatedly submit the same issue to arbitral resolution, thereby essentially "shopping" for a different result, the common rule of the workplace would be destroyed. Contractual Rules are expected to be applied uniformly to all similarly situated employees.
In conclusion therefore, we hold that given the factual record before the Board, the Third Division Awards noted above are controlling precedent and pursuant to the doctrine of collateral estoppel, the instant claims do not merit a sustaining award. There is no evidence in the record that the above Awards, deemed relevant by the Board, are palpably erroneous, thus warranting their rejection by the Board. Given the identity of the parties, facts and Rules, the Board finds that the above cited Third Division Awards together with Award 14 of Public Law Board No. 6302 are controlling, as the Carrier has contended, and the holdings of each must be followed in the instant matters.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.